Colorado court: Masterpiece Cakeshop has to bake the damn cake after all

(AP Photo/David Zalubowski)

No it doesn’t, but once again Jack Phillips will have to resort to federal court to make this point. For some reason, Colorado courts can’t read Supreme Court precedent, and ruled that a trolling effort to force Masterpiece Cakeshop to bake a cake celebrating a gender transition actually should be upheld. The judge fined Phillips $500 for violating the state’s anti-discrimination law:


A Denver court on Tuesday fined local bakery Masterpiece Cakeshop $500 after co-owner Jack Phillips refused to make a cake celebrating a transgender woman’s birthday and transition.

Autumn Scardina filed a lawsuit against Masterpiece Cakeshop in 2017, after the bakery refused to bake her a pink cake with blue frosting, symbolizing her gender transition.

Phillips testified that the bakery refused to bake the cake “based on the message they believed it would have conveyed – that a person can change genders and that a gender transition should be celebrated,” according to the ruling.

Phillips is the same baker who drew widespread attention as the subject of a 2012 lawsuit for refusing to make a cake for a gay couple’s wedding. The Supreme Court ultimately ruled in 2018 that the Colorado Civil Rights Commission, which previously said Phillips should not have refused to serve the couple, violated his First Amendment rights.

This case popped up a few months ago, a bad-faith effort by attorney Autumn Scardina, who first attempted it on the same day that the Supreme Court took the previous Masterpiece Cakeshop appeal in 2017. Scardina admitted that this was essentially trolling:

[Scardina] said she called Phillips’ Masterpiece Cakeshop to place the order after hearing about the court’s announcement because she wanted to find out if he really meant it.

When her lawyer Paula Greisen asked whether the call was a “setup,” she said it was not.

“It was more of calling someone’s bluff,” she said.


And yet, even with this evidence of bad faith and the previous Supreme Court ruling, this Colorado judge still found it proper to force Phillips to submit. It’s shameful.

It won’t last long, promises the Alliance Defending Freedom, which provides pro bono legal representation to Phillips:

“Jack Phillips serves all people but shouldn’t be forced to create custom cakes with messages that violate his conscience. In this case, an activist attorney demanded Jack create custom cakes in order to ‘test’ Jack and ‘correct the errors’ of his thinking, and the activist even threatened to sue Jack again if the case is dismissed for any reason. Radical activists and government officials are targeting artists like Jack because they won’t promote messages on marriage and sexuality that violate their core convictions. This case and others—including the case of floral artist Barronelle Stutzman, whose petition is pending before the U.S. Supreme Court—represents a disturbing trend: the weaponization of our justice system to ruin those with whom the activists disagree. The harassment of people like Jack and Barronelle has been occurring for nearly a decade and must stop. We will appeal this decision and continue to defend the freedom of all Americans to peacefully live and work according to their deeply held beliefs without fear of punishment.”

In other words, this is going right back to federal court, where the previous Supreme Court ruling will apply. Will that be enough, however? It should be, but the 2018 Masterpiece Cakeshop ruling wasn’t exactly a Profile in Courage moment either. Justice Clarence Thomas scolded the court for evading the core issue — Phillips’ right to control his own speech:


There is an obvious flaw, however, with one of the asserted justifications for Colorado’s law. According to the individual respondents, Colorado can compel Phillips’ speech to prevent him from “‘denigrat[ing] the dignity’” of same-sex couples, “‘assert[ing] [their] inferiority,’” and subjecting them to “‘humiliation, frustration, and embarrassment.’” Brief for Respondents Craig et al. 39 (quoting J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 142 (1994); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 292 (1964) (Goldberg, J., concurring)). These justifications are completely foreign to our free speech jurisprudence.

States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Johnson, supra, at 414. A contrary rule would allow the government to stamp out virtually any speech at will. See Morse v. Frederick, 551 U. S. 393, 409 (2007) (“After all, much political and religious speech might be perceived as offensive to some”). As the Court reiterates today, “it is not . . . the role of the State or its officials to prescribe what shall be offensive.” Ante, at 16. “‘Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.’” Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55 (1988); accord, Johnson, supra, at 408–409. If the only reason a public accommodations law regulates speech is “to produce a society free of . . . biases” against the protected groups, that purpose is “decidedly fatal” to the law’s constitutionality, “for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.” …

In Obergefell, I warned that the Court’s decision would “inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to participate in and endorse civil marriages between same-sex couples.” 576 U. S., at ___ (dissenting opinion) (slip op., at 15). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” Id., at ___ (ALITO, J., dissenting) (slip op., at 6). If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.


This new case will give Thomas a perfect opportunity to say I told you so to his colleagues — if it gets that far. Colorado will likely roll over at some point before giving this new Supreme Court line-up a second bite at this apple. And that might be too bad, because this line-up might finally have had enough of this pas de deux over speech rights and bad-faith lawfare from activists. Lord knows the rest of us have had enough of it, especially Jack Phillips.

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